We’ve Heard Enough from Robert Mueller

Robert Mueller on Capitol Hill in 2012. (Yuri Gripas/Reuters)If anyone not named Donald J. Trump were subjected to this new prosecutorial standard, it would occasion widespread consternation.

The last thing the world needs is more of Robert Mueller’s commentary, but Congress is determined to have him hold forth at a public hearing.

It’s not as though we don’t already have the special counsel’s version of events. He mustered enormous investigate resources and took two years to write a 400-page report that is available to the public and presumably carefully written (although not necessarily carefully thought through).

Advertisement

Advertisement

That should be enough for Mueller to stand on, and enough for Congress to make a decision to impeach or not impeach, or otherwise dispose of the matter as it sees fit.

Instead, Mueller is going to be asked to expand on his already-expansive report that not only blew through Justice Department regulations, but inverted the long-standing burden of proof in the Anglo-American legal tradition.

As a prosecutor, Mueller’s job — his sole job, really — was to decide whether or not the president was guilty of a crime. He declined to do this, choosing instead to write a nearly 200-page volume on obstruction cataloguing what he found in the course of not making the only decision he was supposed to make.

Advertisement

The relevant regulations say that at the conclusion of the special counsel’s work, he or she “shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”

Advertisement

On obstruction, Mueller reached no such decision, and he didn’t write a confidential report, either — his report was clearly meant for public consumption. Besides that, he’s a stickler for the rules.

“Mueller’s action,” Jack Goldsmith of Harvard Law School writes at the website Lawfare, “seems inconsistent with what the regulations tried to accomplish, which was to prevent extra-prosecutorial editorializing.”

Worse, as Trump’s special counsel Emmet Flood set out in an excoriating letter, by stipulating that the evidence prevented him “from conclusively determining that no criminal conduct occurred,” Mueller stood the presumption of innocence on its head.

Advertisement

By Mueller’s standard, the prosecutor doesn’t have to prove guilt — the target has to prove innocence. And if the target doesn’t, he will be disparaged in a long-form quasi-indictment spelling out why he’s not exonerated.

If anyone not named Donald J. Trump were subjected to this new prosecutorial standard, it would occasion widespread comment and — one hopes — consternation.

Advertisement

There is, no doubt, public value in Mueller’s report, but he wasn’t supposed to be a free-floating ombudsman or truth commission. If Congress wanted to create one of those and charge it with running down every lead related to Trump’s alleged obstruction, it could have. Under the regulations, though, the special counsel is only “to exercise all investigative and prosecutorial functions of any United States Attorney.”

Now, Congress wants Mueller to compound the offense by speaking publicly. It doesn’t want facts from him. They are already in the report. It wants opinions and sound bites, especially any embarrassing to the president. Congress wants him to spend a couple of high-profile hours further “not exonerating” the president.

If Mueller had a proper understanding of his role, he would decline the congressional invitation and perhaps write a letter giving his version of events regarding his interactions with Attorney General William Barr, which became such a flashpoint last week.

But the fact is that Mueller and Congress have a symbiotic relationship. For two years, Mueller was acting as, in effect, the lead counsel for an impeachment inquiry — bizarrely housed within the executive branch — while Congress wants to use his moral authority as a crutch at a time when it is vulnerable to charges of partisan overreaching.

This, too, is not supposed to be how the system works. But we are long beyond anyone caring. For a swath of the political world and much of the media, all that matters is that Mueller “not exonerate” Trump, and the more, the better, in whatever format or forum.

Recommended Articles

Most Popular

If the Democrats are really tempted by impeachment, bring it on. Since the day after the 2016 election they have been threatening this, placing their chips on the Russian-collusion fantasy and then on the phantasmagoric charade of obstruction of justice. The attorney general accurately gave the ingredients of the ...
Read More

One of the more remarkable developments of the last 50 years is the relentless commitment of a segment of the American academic and cultural elite to selling a vision of American life that is slowly but relentlessly proving to be — on balance — more harmful for children and less joyful for adults, while also ...
Read More

A few weeks ago, I noted that Louisiana’s state legislature is contemplating legislation that would bar makers of cauliflower rice from labeling their product “rice,” contending that consumers will get confused. Instead, the rice growers want the product to be labeled . . . “riced cauliflower.”
But ...
Read More

In 2012, Barack Obama was still president, indeed had four years left in his presidency. "Gangnam Style" was a world-beating music video. Game of Thrones had just gotten started. And, oh yeah, the climate scientist Michael Mann sued National Review over a blog post.
Seven years later, this case has gone pretty ...
Read More

Celebrity attorney Michael Avenatti was indicted by federal prosecutors Wednesday for stealing the identity of his former client, Stormy Daniels, in order to claim more than $300,000 she was owed for a tell-all book about her efforts to expose President Trump.
In the indictment, prosecutors for the Southern ...
Read More

New York magazine’s Jonathan Chait has continued his turn toward conspiracy theory with a new essay. Inspired by our “Against Socialism” issue, it's titled “The New Socialism Panic Is the Right’s Trick to Justify Supporting Trump.” The central thesis of Chait’s submission is that National Review ...
Read More

Every presidential primary ends with one winner and a lot of losers. Some might argue that one or two once-little-known candidates who overperform low expectations get to enjoy a form of moral victory. (Ben Carson and Rick Perry might be happy how the 2016 cycle ended, with both taking roles in Trump’s cabinet. ...
Read More

Affixing one’s glance to the rear-view mirror is usually as ill-advised as staring at one’s own reflection. Still, what a delight it was on Wednesday to see a fresh rendition of “Those Were the Days,” from All in the Family, a show I haven’t watched for nearly 40 years. This time it was Woody Harrelson ...
Read More

At the time of the Roe v. Wade decision, I was a college student — an anti-war, mother-earth, feminist, hippie college student. That particular January I was taking a semester off, living in the D.C. area and volunteering at the feminist “underground newspaper” Off Our Backs. As you’d guess, I was ...
Read More